LESSONS FROM THE SOUTH CHINA SEA RULING: MED-ARB … · UNCLOS III is an international agreement which established standards and legal methods for securing navigation rights and pro-

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LESSONS FROM THE SOUTH CHINA SEARULING: MED-ARB AS THE RECOMMENDEDDISPUTE RESOLUTION METHOD FOR ASIA’S

MARITIME DISPUTES UNDER UNCLOS

Julia Y. Yang*

I. INTRODUCTION

On July 12, 2016, an arbitral tribunal at the Permanent Courtof Arbitration (“PCA”) issued its final award1 setting forth the in-terpretation and application of the Third United Nations Conven-tion on the Law of the Sea (“UNCLOS III”),2 regarding theconflicting maritime claims in the South China Sea.3 The SouthChina Sea, a thoroughfare for global trade endowed with a richreserve of natural resources, was claimed for decades by six differ-ent countries surrounding that body of water.4 The PCA decisionaddressed the prolonged dispute between the People’s Republic ofChina and the Republic of the Philippines,5 both with purportedhistorical rights in the region, and marked the end of a long historyof diplomatic conflicts in the South China Sea. Any relief wasshort-lived, however,6 as China refused to comply with the tribu-nal’s decision, which denied a majority of China’s claims to the dis-

* Notes Editor, Cardozo Journal of Conflict Resolution, B.A., 2013, Rutgers University; J.D.,2018, Benjamin N. Cardozo School of Law. The author thanks her family, mentors, and thejournal staff for their support and encouragement. In addition, the author thanks ProfessorDavid Rudenstine for his help and guidance.

1 The Republic of the Philippines v. The People’s Republic of China, No. 2013-19, Award(Perm. Ct. Arb. 2016), https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf [hereinafter Award].

2 Declarations and Statements, U.N. DIV. FOR OCEAN AFFAIRS AND THE LAW OF THE SEA

(Oct. 29, 2013), http://www.un.org/depts/los/convention_agreements/convention_declarations.htm [hereinafter Declarations and Statements].

3 Bernard H. Oxman, The South China Sea Arbitration Award, 24 U. MIAMI INT’L & COMP.L. REV. 235, 237 (2017); see China’s Maritime Disputes, COUNCIL ON FOREIGN RELATIONS, http://www.cfr.org/asia-and-pacific/chinas-maritime-disputes/p31345#!/?cid=otr-marketing_use-china_sea_InfoGuide (last visited Feb. 1, 2017) [hereinafter China’s Maritime Disputes].

4 China’s Maritime Disputes, supra note 3.5 Jane Perlez, Tribunal Rejects Beijing’s Claims in South China Sea, N.Y. TIMES (July 12,

2016), http://www.nytimes.com/2016/07/13/world/asia/south-china-sea-hague-ruling-philippines.html?_r=0.

6 Yuji Vincent Gonzales, Aquino, Del Rosario Lauded for ‘Iron Will’ over South China SeaDispute, INQUIRER.NET (July 13, 2016), http://globalnation.inquirer.net/141077/aquino-del-rosario-lauded-for-iron-will-over-south-china-sea-dispute.

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puted waters, signaling the continuation of uncertainty and futuredisputes in the South China Sea: “China, which refused to partici-pate in the tribunal’s proceedings, reiterated . . . that it would notabide by it.”7 This unequivocal rejection of the PCA tribunal, em-phasized by a three-minute video released after the proceedings inwhich the Chinese government reasserted its sovereignty over theSouth China Sea islands and undermined the arbitral tribunal’s au-thority,8 sparked a renewed examination of the direct and indirectconsequences of the decision and called into question the adequacyof the existing legal framework for maritime disputes, its disputeresolution methods, and its lack of enforcement mechanisms.9 Atthe center of the new discussion was UNCLOS III, under whichthis particular dispute as well as other similar maritime boundarydisputes had been resolved in the past.10

This Note discusses the weaknesses of the current default dis-pute resolution method implemented by UNCLOS. Part II of thisNote illustrates the recent history and the nature of the SouthChina Sea dispute and the legal context provided by UNCLOS formaritime disputes in Asia. Part III will discuss the inadequacy ofthe current default adjudication method implemented by UN-CLOS. Part IV recommends the adoption of med-arb as the idealdispute resolution method and a requirement to show consentbefore parties engage in proceedings for maritime dispute resolu-tions in Asia.

II. BACKGROUND

A. UNCLOS III

UNCLOS III is an international agreement which establishedstandards and legal methods for securing navigation rights and pro-vided access and management to natural resources of the ocean.11

7 Perlez, supra note 5.8 Kate Parlett, Jurisdiction of the Arbitral Tribunal in Philippines v. China Under UNCLOS

and in the Absence of China, 110 AJIL UNBOUND 266, 266 (2016).9 Id.

10 See Sarah Watson, The Bangladesh/Myanmar Maritime Dispute: Lessons for Peaceful Res-olution, ASIA MARITIME TRANSPARENCY INITIATIVE (Oct. 19, 2015), https://amti.csis.org/the-bangladeshmyanmar-maritime-dispute-lessons-for-peaceful-resolution; Zachary Keck, HowSouth Asia Resolves Maritime Disputes, DIPLOMAT (July 10, 2014), http://thediplomat.com/2014/07/how-south-asia-resolves-maritime-disputes.

11 Declarations and Statements, supra note 2.


2018] RECOMMENDED DISPUTE RESOLUTION 785

The agreement expanded “the right of nations to claim both sover-eignty and sovereign rights further to sea.”12 One of the major ac-complishments of the Convention13 was defining and limiting thejurisdictional areas of the sea14 from the baseline of the coast: theterritorial sea, twelve nautical miles (“nm”) from the baseline; thecontiguous zone, twelve to twenty-four nm from the baseline; theexclusive economic zone (“EEZ”), two hundred nm from the base-line; and the high seas.15 These distinct areas would give exclusiverights or sovereignty (or both) upon the coastal nation, withgreater proximity to the defined baseline of the coastal nationyielding a greater degree of sovereignty and control over thearea.16 For example, the coastal nation is able to make laws, regu-late, and access resources within the territorial waters located closeto the coastline. Within the exclusive economic zones, the coastalnation would have fishing rights and sole exploitation rights of thenatural resources found within the area.17 These areas were de-fined to avoid conflicts over resources and rights amongst nearbystates while guaranteeing that all nations still retained the freedomof navigation and overflight within the EEZ18—a problem that wasnot addressed by the older conventions19 dating back to 1958.20

12 Glenn M. Sulmasy & Chris Tribolet, The United Nations Convention on The Law of theSea, in NATIONAL SECURITY LAW IN THE NEWS: A GUIDE FOR JOURNALISTS, SCHOLARS, AND

POLICYMAKERS (Paul A. Rosenzweig, Timothy J. McNulty & Ellen Shearer eds., 2012).13 Declarations and Statements, supra note 2.14 Jay M. Zitter, Construction and Application of United Nations Convention on the Law of

the Sea—Global Cases, 21 AM. L. REP. FED. 2d 109 (2007).15 Sulmasy & Tribolet, supra note 12; Robert Beckman, The UN Convention of the Law of

the Sea and the Maritime Disputes in the South China Sea, 107 AM. J. INT’L L. 142, 145 (2013).16 Sulmasy & Tribolet, supra note 12; Beckman, supra note 15.17 Sulmasy & Tribolet, supra note 12; Beckman, supra note 15.18 United Nations Convention on the Law of the Sea art. 58, Dec. 10, 1982, 1833 U.N.T.S.

397 [hereinafter UNCLOS].19 See United Nations Conference on the Law of the Sea, 1958, U.N. OFFICE OF LEGAL AF-

FAIRS, CODIFICATION DIVISION, http://legal.un.org/diplomaticconferences/1958_los (last visitedApr. 29, 2018); Second United Nations Conference on the Law of the Sea, 1960, U.N. OFFICE OF

LEGAL AFFAIRS, CODIFICATION DIVISION, http://legal.un.org/diplomaticconferences/1960_los(last visited Apr. 29, 2018).

20 Dustin E. Wallace, An Analysis of Chinese Maritime Claims in the South China Sea, 63NAVAL L. REV. 128, 130 (2014) (quoting U.N. Office of Legal Affairs, Div. for Ocean Affairsand the Law of the Sea, United Nations Convention on the Law of the Sea: A Historical Per-spective, http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm (last visited Feb. 5, 2017)):

As noted by the United Nations: ‘Almost [ninety-nine] per cent of the world’s fisher-ies now fall under some nation’s jurisdiction. Also, a large percentage of world oiland gas production is offshore.’ The EEZ concept codified in UNCLOS ‘provides along-needed opportunity for rational, well-managed exploitation under an assuredauthority.’



UNCLOS III also mandated a choice of procedure provisionfor settling disputes between parties to the Convention: the partiesare first directed “to settle disputes by peaceful means,”21 whichmay include “negotiation, enquiry, mediation, conciliation, arbitra-tion, judicial settlement, resort to regional agencies or arrange-ments, or other peaceful means of their own choice.”22 If theparties have a dispute concerning the interpretation or applicationof the Convention, then they are directed to choose a means for abinding decision to be made.23 The parties indicate their choice ofprocedure upon signing UNCLOS24 from the following options:

(a) the International Tribunal for the Law of the Sea estab-lished in accordance with Annex VI;

(b) the International Court of Justice;(c) an arbitral tribunal constituted in accordance with Annex

VII;(d) a special tribunal constituted in accordance with Annex

VIII for one or more of the categories of disputes specifiedtherein.25

If no preference is indicated by the parties, they “shall bedeemed to have accepted arbitration in accordance with AnnexVII” by default under Article 287 paragraph 3.26 Unless the partiesreach a settlement on their own, they must appear before either ajudge or a tribunal as they progress through UNCLOS’ dispute res-olution path.27

B. The South China Sea Dispute

1. The South China Sea

The protracted dispute is over the South China Sea that spansabout 1,423,000 square miles (3,685,000 square kilometers) and issurrounded by China, Vietnam, Cambodia, the Philippines, Tai-

Id.21 UNCLOS, supra note 18, at art. 279.22 U.N. Charter art. 33, ¶1.23 UNCLOS, supra note 18, at art. 287.24 Settlement of disputes mechanism, U.N. (Apr. 10, 2013), http://www.un.org/Depts/los/settle

ment_of_disputes/choice_procedure.htm.25 UNCLOS, supra note 18.26 Id. 27 Louis B. Sohn, Peaceful Settlement of International Disputes in Ocean Conflicts: Does UN-

CLOS III Point the Way?, 46 L. & CONTEMP. PROBS. 195, 196 (1983).



wan, Indonesia, and various small islands.28 Besides the abundantfishery that serves as a steady source of food for the region, theSouth China Sea contains reserves of oil and natural gas under itsseabed,29 specifically in the southwestern part of the sea betweenVietnam, Malaysia, and Brunei.30 Geopolitically, the South ChinaSea is a major marine transportation lane with one-third of theworld’s shipping going through its waters31 due to the proximity ofthe ports of China, Japan, Korea, and Russia, as well as variousstraits leading to Southeast Asian countries.32 It is no surprise thatmost of the countries surrounding this body of water are alsoclaimants vying for its control: China, Taiwan, Vietnam, Philip-pines, Brunei, Malaysia, and Indonesia are all such claimants.33

The difference between China and the rest of the claimants is thatChina claims historic rights over the entire South China Sea whileothers claim various parts of the water.34 There are differentgroups of geographical features comprising of islets, shoals, etc., onthe South China Sea that serve as anchor points for these disputedclaims.35

The setting of the South China Sea dispute is the conflictingclaims of sovereignty over these seemingly insignificant geographi-cal features36 which would allow states to assert stronger claimsover the region due to their baseline being extended beyond theirmainland coastline. Ever since the end of World War II, the claim-ants to the South China Sea continued in their efforts to establish

28 Eugene C. LaFond, South China Sea, ENCYCLOPEDIA BRITANNICA (Apr. 5, 2018), https://www.britannica.com/place/South-China-Sea.

29 It is estimated that there is at least eleven billion barrels of oil reserves and 190 trillioncubic feet of natural gas. Yuwa Wei, China and Its Neighbors: Exasperating Territorial Disputes,22 WILLAMETTE J. INT’L L. & DISP. RESOL. 105, 114 (2014) (quoting South China Sea, U.S.ENERGY INFO. ADMIN., http://www.eia.gov/countries/regions-topics.cfm?fips=SCS (Feb. 7,2013)).

30 LaFond, supra note 28.31 Wei, supra note 29.32 Clive Schofield, Dangerous Ground: A Geopolitical Overview of the South China Sea, in

SECURITY AND INTERNATIONAL POLITICS IN THE SOUTH CHINA SEA 18 (Sam Bateman & RalfEmmers eds., 2009).

33 Id. 34 Wallace, supra note 20.35 Beckman, supra note 15, at 143.36 Beckman, supra note 15, at 144–45 (the highly contested groups of geographical features

are as follows: the Spratly Islands, consisting of more than 140 islets, rocks, reefs, shoals, andsandbanks that are sometimes submerged, and only forty of which qualify as islands under thedefinition of UNCLOS Art. 121(1); the Paracels, consisting of thirty-five islets, shoals, sand-banks, and reefs, and which are mainly claimed by China and Vietnam; the Scarborough Shoal, achain of reefs and rocks that is mostly submerged underwater; the Pratas Islands; and the Mac-clesfield Bank).



links to the geographical features in the body of water in hopesthat their claims by cession, prescription, subjugation, or occupa-tion37 of the small islands, shoals, sandbanks, or reefs38 would sup-port their claims of sovereignty beyond their immediate coastline,even if they usually only succeed in claiming a portion of the isletsor a part of the chain of reefs in the sea.39

2. History of Recent Dispute Over the South China Sea

While the historical backdrop of the dispute can be tracedback to the end of World War II,40 the tension between China andthe Philippines escalated in recent years due to Chinese fishing ves-sels illegally hauling clams near the Scarborough Shoal, an unin-habited chain of rocks located closest to the Philippines.41 Astandoff ensued for months, followed by a U.S.-brokered dealunder which both nations agreed to withdraw its vessels until own-ership issues could be resolved, but Chinese forced remained andproceeded to effectively militarize the Shoal.42 The tribunal pro-ceedings at issue were initiated by the Philippines in January 2013after the latest attempts at compromise fell through between the

37 Cession is a peaceful transfer of territory, usually effectuated by an agreement. Prescrip-tion is an acquisition of a territory through continuous and undisturbed exercise of sovereigntylasting long enough to create a general conviction of the possession. Subjugation is acquiring titleby conquest followed by annexation. Occupation is an intentional appropriation of sovereigntyover territory treated as a terra nullius. Benjamin K. Sibbett, Tokdo or Takeshima? The Territo-rial Dispute Between Japan and the Republic of Korea, 21 FORDHAM INT’L L.J. 1606, 1622–24(1998).

38 Beckman, supra note 15.39 Id. 40 Rafał Tarnogorski, South China Sea Arbitration: Roots and Consequences, POLISH INSTI-

TUTE OF INTERNATIONAL AFFAIRS (July 18, 2016), https://www.pism.pl/publications/bulletin/no-43-893:

After defeating Nazi Germany in Europe, in 26 June 1945, the Allies set out theconditions for the surrender of Japan (the Potsdam Declaration). . . . The act of un-conditional surrender of the Empire, signed on 2 September 1945, confirmed thesefindings. The Republic of China considered this to be a waiver of Japanese sover-eignty over the archipelagos situated on the South China Sea. In 1947, China issued aclaim called the ‘eleven-dash line.’ These claims were upheld in 1949 by the People’sRepublic of China by modifying the demarcation line to the ‘nine-dash line.’ This linewas then used to determine claims to disputed areas.

Id.; but see Wei, supra note 29, at 133 (showing that the Philippines asserted similar claims underthe same reasoning, that the islands in the South China Sea had become res nullius and open toacquisition, and that the Philippines have acquired some of the islands by occupation).

41 Philippines’ Aquino Says China Breaks Deal on South China Sea Outcrop, REUTERS (May26, 2016), https://www.reuters.com/article/us-southchinasea-philippines-aquino/philippines-aquino-says-china-breaks-deal-on-south-china-sea-outcrop-idUSKCN0YH1BP.

42 Id.



parties.43 The Philippines’ Aquino administration had turned toarbitration as a last resort, wanting a long-lasting solution or “astronger position” for negotiating against a formidable counter-part.44 China, while rejecting the submission of the matter to thetribunal, proceeded to construct artificial islands in the SouthChina Sea to strengthen their claim in the area.45 Globally, thisencroachment on the Scarborough Shoal was seen as part of a de-liberate plan to establish Chinese claim in the overall South ChinaSea: prior to its fishing vessels’ presence near the ScarboroughShoal, China had reclaimed reefs in the Spratly Islands and hadsimilarly militarized them by building structures such as airfields,ports, and lighthouse radars on the island.46

In the Philippines, the incoming Duterte administration held anear opposite approach to that of the exiting Aquino administra-tion with regard to foreign policy.47 Staying on good terms withChina duly outweighed seizing upon any advantages from the PCAruling, and there were signs even before the new administrationtook office that they wanted to cooperate with China bilaterallyrather than pursue an international dispute resolution.48

3. The Tribunal’s Ruling on Philippines v. China

On October 29, 2015, the PCA issued an award determiningjurisdiction over a portion of the submitted issues,49 and made mul-tiple decisions in favor of the Philippines50 on July 12, 2016. Al-though the tribunal reserved ruling specifically on territorialsovereignty and maritime delimitation,51 it unanimously held thatChina had no basis for a historic claim over the South China Sea on

43 Tarnogorski, supra note 40.44 Paterno Esmaquel II, Aquino: The President Who Brought China to Court, RAPPLER

(June 29, 2016), https://www.rappler.com/nation/137939-president-aquino-west-philippine-sea-china-dispute.

45 Tiffany M. Lin, Chinese Attitudes Toward Third-Party Dispute Resolution in InternationalLaw, 48 N.Y.U. J. INT’L L. & POL. 581, 599 (2016).

46 REUTERS, supra note 41.47 Javier C. Hernandez, Benigno Aquino Says U.S. Must Act if China Moves on Reef in South

China Sea, N.Y. TIMES (May 19, 2016), https://www.nytimes.com/2016/05/20/world/asia/benigno-aquino-philippines-south-china-sea.html.

48 Id. 49 The Republic of the Philippines v. The People’s Republic of China, No. 2013-19, Award

on Jurisdiction and Admissibility (Perm. Ct. Arb. 2015), http://www.pcacases.com/web/sendAttach/1506.

50 Award, supra note 1.51 Lucy Reed & Kenneth Wong, Marine Entitlements in the South China Sea: The Arbitration

Between the Philippines and China, 110 AM. J. INT’L L. 746 (2016).



the “nine-dash line.”52 This finding significantly thwarted China’sprotracted efforts to claim sovereignty in the region against otherclaimants.53

The Chinese claim would not have been legitimate under themaritime jurisdictional areas established by UNCLOS, as theSouth China Sea in its entirety extends much beyond the EEZ offthe Chinese coast.54 Maritime delimitations cannot be unilaterallymade by one state, as the seas are international areas by nature.55

On the other hand, the tribunal made various rulings concerningmaritime entitlements,56 which essentially undermined the Chineseefforts leading up to the decision: with regard to the disputed area,only the Philippines possessed sovereign rights with respect to liv-ing and nonliving resources; China contravened the Convention inpermitting its nationals and vessels from exploiting the resources inthe Philippines’ EEZ;57 and China’s construction activities in creat-ing an artificial island was a violation of the Philippines’ regulatorypower over the construction and operation of such structures intheir EEZ.58 Chinese presence in the area was also censured forcausing marine environmental damage through building activities59

and for aggravating the dispute with such activities in the area dur-ing the pre-arbitration period after the Philippines had submittedfor the proceedings.60

52 Tarnogorski, supra note 40.53 Wei, supra note 29, at 113 (the nine-dash line dates back to 1947, when China released a

map with a maritime border for their southern coast that claimed the majority of the SouthChina Sea under its sovereignty. The nine-dash line had been the main historical basis forChina’s claim over the entire South China Sea over the years, as this maritime border was pro-claimed at a time when majority of the now-independent Southeast Asian countries had yet tocome into being after World War II).

54 Lin, supra note 45, at 602 (in light of the circumstances, China was aware of its disadvan-tages under UNCLOS and declared that it would not accept any dispute settlement procedureswith respect to maritime boundaries after ratifying UNCLOS, and instead settle such disputesthrough consultations).

55 Ekrem Korkut & Woo Hyun Kang, China’s Nine Dash Line Claim in Light of the Rulingby the Permanent Court of Arbitration, 5 PENN ST. J. L. & INT’L AFF. 425, 461 (2017).

56 Award, supra note 1; Reed & Wong, supra note 51, at 753.57 Reed & Wong, supra note 51, at 754.58 Id. at 755.59 Id. at 756.60 Id. at 757.



C. Mediation, Arbitration, and “Med-Arb”

1. Mediation

The parties have various methods of alternate dispute resolu-tion (“ADR”) to turn to. The most common forms of ADR, asidefrom negotiation, are mediation and arbitration. Mediation is “amethod of nonbinding dispute resolution involving a neutral thirdparty who tries to help the disputing parties reach a mutuallyagreeable solution”61 or “a process in which a mediator facilitatescommunication and negotiation between parties to assist them inreaching a voluntary agreement regarding their dispute.”62 Theparties may be individuals, but in the context of international dis-putes, the parties are two or more governments in disagreementwith one another. A neutral expert serves as a catalyst when theparties are unlikely to advance the discussion on their own.Though mediators may vary in degrees of engagement, they gener-ally employ three different types of strategies: (1) communicationstrategies, (2) formulation strategies, and (3) manipulativestrategies.

Communication strategies include contacting the parties, trans-mitting messages, building trust and rapport, clarifying and sup-plying missing information. Formulation strategies includearranging the mediation setting and protocols, shaping theagenda, controlling timing and maintaining parties’ focus, sug-gesting concessions, options and settlement proposals. Manipu-lative strategies include keeping the parties in negotiation,changing their expectations, pressing them to be flexible, filter-ing information, adding incentives or threatening punishment,and threatening to withdraw.63

2. Arbitration

Arbitration is a “dispute-resolution process in which the dis-puting parties choose one or more neutral third parties to make afinal and binding decision resolving the dispute.”64 The processmay be similar to litigation in that there may be a procedure for

61 Mediation, BLACK’S LAW DICTIONARY (10th ed. 2014).62 UNIFORM MEDIATION ACT §2 (NAT’L CONFERENCE OF COMM’RS OF UNIF. STATE LAWS

2003).63 Jacob Bercovitch, Mediation in International Conflict: An Overview of Theory, A Review

of Practice, in PEACEMAKING IN INTERNATIONAL CONFLICT: METHODS & TECHNIQUES 125–54(Ira William Zartman ed., 1997).

64 Arbitration, BLACK’S LAW DICTIONARY (10th ed. 2014).



discovery or witnesses, but it is usually less formal. The arbitratormay also be an expert in the area of dispute,65 who would applyprecedent and applicable international law to resolve the dispute.66

Parties are usually in formal agreement at the onset of the relation-ship to submit to an arbitration in case of a dispute.67 Arbitrationis a widely used method to reach a decision when a formal adjudi-cation is not desirable, as it is generally shorter and more cost-ef-fective than formal adjudications.68

3. Med-Arb

Med-arb69 is a combination of the two alternative dispute res-olution methods described above. The parties first attempt toreach an agreement in mediation, then proceed to arbitration tohave an arbitrator or a tribune decide on the dispute, or on anyissues that remain unresolved between the parties.70 This combina-tion is favored for its flexibility and efficiency—the parties are freeto settle their dispute during the mediation process and avoid thecost of arbitration altogether. If they are not able to settle, theyenter into the arbitration phase of the procedure at the scheduledtime, limiting the waste of time and uncertainty as to what happensnext, while ensuring that the dispute is ultimately resolved.71 Also,parties are more likely to comply with the results because the arbi-tration decision was a continuation of the mediation that tookplace during the first part of the med-arb proceedings.72

65 What is Arbitration?, CHARTERED INSTITUTE OF ARBITRATORS, http://www.ciarb.org/dispute-appointment-service/arbitration/what-is-arbitration (last visited Apr. 29, 2018).

66 M. Scott Garrison, Comment, Sovereignty of Aves Island: An Argument Against Compul-sory, Standardized Arbitration of Maritime Boundary Disputes Subject to Review by the Interna-tional Court of Justice, 38 U. MIAMI INTER-AM. L. REV. 185, 196 (2006).

67 31 – 903 MOORE’S FEDERAL PRACTICE – CIVIL §903.10 (2016) [hereinafter MOORE’S].68 Id. 69 An alternative-dispute-resolution process in which the parties first attempt to reach an

agreement with the assistance of a mediator, and proceed to binding arbitration if they cannot.Mediation, supra note 63.

70 Ellen E. Deason, Combinations of Mediation and Arbitration with the Same Neutral: AFramework for Judicial Review, 5 Y.B. ON ARB. & MEDIATION 219, 221–22 (2013).

71 Id. at 222, 224.72 Garrison, supra note 66, at 219.



III. DISCUSSION

A. Elements of Arbitration-Appropriate Disputes

The aftermath of the Philippines v. China decision was in starkcontrast to the resolution of the disputes surrounding the Bay ofBengal, which had its share of conflicts due to its rich reserve ofresources. Two separate decisions were rendered within the legalframework provided under UNCLOS III: the International Tribu-nal for the Law of the Seas (“ITLOS”) decided on a dispute be-tween Bangladesh and Myanmar in March 201273 and the PCArendered a decision on a dispute between India and Bangladesh inJuly 2014.74 The governments of Myanmar and India, which weredisputing with Bangladesh in each of those decisions, accepted andhonored the decisions of the judge and tribunal. Their eagerness toend the dispute played a great role in their ready compliance withthe decisions.75 The parties were wearied from years of disputeand the negative economic consequences—not being able to secureinvestors to the disputed region and being prevented from econom-ically benefiting from the resources—and welcomed the resultsthat finalized years of uncertainty, economic loss, and quarrelingamongst neighbors.

An example of arbitration-appropriate disputes are interna-tional commercial disputes. Commercial arbitrations have a solidfoundation grounded in international treaties, including the NewYork Convention of 1958, which is widely supported by nationallegal systems around the globe.76 Such adherence is rooted in thetraditional preference of merchants to “avoid costs, delays, andperceived distortions of judicial litigation. . . . They also see littlevalue in pursuing the technical considerations.”77 Like the Ban-gladesh decision, there is an incentive for expediency to enablemerchants to profit from the disputed transaction and to move onto pursue further transactions, and less likelihood of rejecting a de-cision perceived to be inequitable.

73 Watson, supra note 10.74 Keck, supra note 10.75 Id. 76 MOORE’S, supra note 67 (France has limited their own regulations so that international

arbitration implemented by the United Nations Commission on International Trade Law (UN-CITRAL) would take precedence. Countries like Germany have fully adopted new arbitrationlaws based on the UNCITRAL model law).

77 MOORE’S, supra note 69, at 2.



The same cannot be said for territorial disputes, which havebroader goals that outweigh concerns over saving time and re-sources. Although one can speculate as to the depth of China’sinterests in the region, the significance of the South China Sea wasnot limited to the net worth of the natural resources in the regionthat was at consequence; it was also about sovereignty, growingglobal presence, and historical legitimacy in the region that Chinawas claiming.78 An adverse outcome was unacceptable, and evenas they vehemently claimed sovereignty over the waters prior tothe arbitration ruling, China was calling to the Philippines to nego-tiate.79 China’s biggest priority may be to avoid domestic backlash,prioritizing preservation of national pride and preferring that “rivalclaimants . . . yield on symbols in return for material gains.”80 Sucha goal is not focused on a speedy settlement as in other disputes,but in political victory and justification.81

The arbitrations usually involve permanent settlements of ter-ritorial boundaries and rights. The smallest point of procedural oradministrative contention or perceived inequity will be pursued asa reason for nonadherence. In the case of China, it refused to par-ticipate in the proceedings from the beginning to distance itselffrom a potentially negative outcome. China had a history of refus-ing to acknowledge the jurisdiction and authority of internationalcourts such as the International Court of Justice, and was not theonly major power to do so.82 China preferred to negotiate directlywith neighboring countries and to sign temporary pacts with themconcerning the disputed areas, such as the Declaration on the Con-duct of Parties in the South China Sea, which was signed with Asso-ciation of Southeast Asian Nations (“ASEAN”) in 2002.83 Underthis declaration of conduct, the parties agreed “to resolve territo-

78 China’s South China Sea claim is not only challenged by its neighboring countries, but alsoby the United States, which views China’s activities in the region as a threat. See Idrees AliSpetalnick & Matt Spetalnick, U.S. Warship Challenges China’s Claims in South China Sea,REUTERS (Oct. 21, 2016), http://www.reuters.com/article/us-southchinasea-usa-exclusive-idUSKCN12L1O9; David Brunnstrom & Matt Spetalnick, Tillerson Says China Should beBarred from South China Sea Islands, REUTERS (Jan. 11, 2017), http://www.reuters.com/article/us-congress-tillerson-china-idUSKBN14V2KZ.

79 Carlos Ramos-Mrosovsky, International Law’s Unhelpful Role in the Senkaku Islands, 29U. PA. J. INT’L L. 903, 907 (2008).

80 David A. Welch, China’s Curious South China Sea Negotiation Policy, DIPLOMAT (June24, 2016), http://thediplomat.com/2016/06/chinas-curious-south-china-sea-negotiation-policy.

81 Ramos-Mrosovsky, supra note 79.82 Nina Roca, Note, Whose Land is it Anyway? The Territorial and Maritime Dispute Over

the Spratly Islands, 12 FLA. INT’L U. L. REV. 391, 394 (2017).83 Id.



rial and jurisdictional disputes [in the South China Sea] by peacefulmeans, without resorting to the threat or use of force, throughfriendly consultations and negotiations by sovereign states directlyconcerned.”84 This agreement was among the agreements andtreaties cited by China as preempting the arbitral ruling becausethe parties had agreed to negotiate.85

The South China Sea dispute may seem like a dramatic exam-ple due to its decades-long dispute over the area, which involveshalf a dozen parties. However, it certainly is not the only one of itskind—eastern Asia has constantly been the backdrop ofthreatened, and/or implemented, severance of diplomatic ties dueto disputes over such “symbols,”86 usually in the form of small is-lands with unclear economic or military benefits.87 In a regionwhere only a few decades have passed since it was fraught withworld wars and occupations by neighboring countries, claims ofsovereignty and ownership are often charged with a deep sense ofnationalism and pride, or with humiliation and resentment againstthe other country. With this recent history as a backdrop, all ofeastern Asia are either parties or signatories to UNCLOS,88 andconsequently within the framework of the Convention if any onecountry chooses to resolve their inter-regional maritime dispute.

While China’s defiance at the South China Sea ruling is notwholly surprising, it remains to be seen whether China will con-tinue to be subject to UNCLOS. The decisions under the Conven-tion, since its ratification in 1994, has not been known to yieldfavorable results for major global powers. The Convention’s great-est merit is that it is able to arm a less powerful party-nation’sclaim with legitimacy against a more powerful nation. Such meritswere outweighed by the lack of enforcement measures exercised by

84 Id. (quoting ASEAN, Declaration of the Conduct of the Parties in the South China Sea,section 4 (Nov. 4, 2002), http://asean.org/?static_post=declaration-on-the-conduct-of-parties-in-the-south-china-sea-2).

85 Id. at 414.86 Ramos-Mrosovsky, supra note 81.87 See Seokwoo Lee, The 1951 San Francisco Peace Treaty with Japan and the Territorial

Disputes in East Asia, 11 PAC. RIM L. & POL’Y J. 63 (2002) (examining the merits of claims onthe disputed islands in East Asia under the final form as well as drafts of the San Francisco PeaceTreaty of 1951); Garret Bowman, Why Now is the Time to Resolve the Dokdo/Takeshima Dis-pute, 46 CASE W. RES. J. INT’L L. 433 (2013) (discussion over decades-long dispute betweenSouth Korea and Japan over “a pair of small rocky landmasses,” and the resulting tension thatinfluences the diplomatic relationship between the two nations); Guifang (Julia) Xue & LeiZhang, Maritime Disputes in Northeast Asia and Escalation of the Sino-Japan Islands Dispute:Implications and Prospects, 35 U. HAW. L. REV. 459 (2013).

88 Declarations and Statements, supra note 2.



either the United Nations or its signatory governments in the formof diplomatic pressure. The United States is one such country thathas not ratified the Convention despite its active participation inthe international community,89 fearing that it would be subject toUNCLOS laws upon waters. The South China Sea result wascrushing for China. China invested many years’ worth of effortinto building a persuasive claim over the region, including buildingartificial land masses by piling sediment from the seafloor onto areef, and constructing ports and military buildings on the artificialislands.90

The aftermath of the South China Sea dispute highlights thedifficulties of a body of law without the means to enforce: China isarranging bilateral negotiations with the governments of Asianstates that are claimants to the South China Sea.91 The govern-ment of Philippines, which seemed to have gained a step from thearbitration result, readily agreed to cooperate with China.92 Infact, the Asian states are responding as if the arbitration decisionwas never even made, with ASEAN, under Duterte’s chairman-ship, agreeing to negotiate a Code of Conduct (“COC”) withoutexternal involvement.93 Any negotiations will most likely occur be-hind closed doors, where negotiating skills and political power willplay a great role in determining the territorial outcome.94

89 Ben Cardin, The South China Sea is the Reason the United States Must Ratify UNCLOS,FOREIGN POLICY (July 13, 2016), http://foreignpolicy.com/2016/07/13/the-south-china-sea-is-the-reason-the-united-states-must-ratify-unclos; see Parlett, supra note 8.

90 Derek Watkins, What China Has Been Building in the South China Sea, N.Y. TIMES (Oct.27, 2015), https://www.nytimes.com/interactive/2015/07/30/world/asia/what-china-has-been-building-in-the-south-china-sea.html.

91 China: Iron Out South China Sea Dispute Ourselves, VOICE OF AMERICA NEWS, http://www.voanews.com/a/china-south-china-sea-disputes/3604234.html (last visited Dec. 23, 2016)[hereinafter Iron Out].

92 Another possible reason is that the Filipino president Rodrigo Duterte returned from anofficial state visit to China with twenty-four billion dollars in soft loans. Ana P. Santos, SouthChina Sea Maritime Diplomacy Hurts Filipino Fishermen, DEUTSCHE WELLE (Dec. 5, 2016),http://www.dw.com/en/south-china-sea-maritime-diplomacy-hurts-filipino-fishermen/a-36643646.

93 Morley J. Weston, Did Duterte Give Up on the South China Sea Dispute?, NEWS LENS

(Jan. 17, 2018), https://international.thenewslens.com/article/87766; Associated Press, PhilippinesSays it Will Not Get Involved in South China Sea Dispute, Says US Can ‘Take Care of its OwnInterests’, FIRSTPOST (Jan. 21, 2018), http://www.firstpost.com/world/philippines-says-it-will-not-get-involved-in-south-china-sea-dispute-says-us-can-take-care-of-its-own-interests-4313037.html.

94 Santos, supra note 92.



B. Challenges Under UNCLOS III Dispute Resolution Method

UNCLOS standards, as discussed above, are improvements ofthe previous versions of the Convention,95 and are regarded as the“codification of the contemporary customary international law ofthe sea.”96 With the establishment of EEZs and dispute resolutionmethods, the Convention provided guidelines for coastal nations inestablishing claims, exercising rights, and resolving disputes.97 Intheory, even a conflict in a heavily disputed region such as theSouth China Sea should be resolved if the parties complied in goodfaith with UNCLOS provisions.98 The remaining problem is thatthe parties are not willing to fully cooperate because doing so mayundermine their overlapping claims to the area. The obvious issuethat requires parties’ cooperation (which is much better served bymediation or med-arb rather than by arbitrations),99 is that theSouth China Sea is densely surrounded by multiple different coun-tries, allowing for overlapping claims to the area.100 The Conven-tion’s rules do not provide further guidance for such conflicts.101

The purpose of UNCLOS is to apportion the maritime entitle-ments equitably, not to provide windfalls for any one party.102 Thedecision highlighted UNCLOS’s quasi-court function and its polic-ing goals instead of merely providing for an alternative dispute res-olution forum.103 In this instance, the South China Sea decisionwas rendered much like a default judgment in a United Statescourt, with only one active party involved in the proceedings.104

95 UNCLOS, supra note 18.96 Tarnogorski, supra note 40.97 Ramos-Mrosovsky, supra note 81, at 911.98 Beckman, supra note 15.99 Garrison, supra note 66, at 218.

100 One of the many reasons for China building islands in the South China Sea is to bolster itsterritorial claims under UNCLOS. Watkins, supra note 90.

101 Ramos-Mrosovsky, supra note 81.102 Tarnogorski, supra note 40.103 Id.:

The decision is important because it affirms the existence of certain norms of interna-tional law. The arbitration process seeks to show that a claim is well founded in factand law. The tribunal’s finding that China aggravated the dispute and is a violation ofthe principle of good faith should be emphasized.

Tarnogorski, supra note 40.104 Whether they actually subject themselves to the Convention’s adjudication is a separate

matter. When it comes to high-stakes cases, see Ramos-Mrosovsky, supra note 81:[T]he unpredictability of litigation, the probable domestic illegitimacy of any adverseresult, and the lack of any means short of force to enforce a judgment all work todiscourage litigation or arbitration. The same factors make it similarly difficult for



The Convention’s current provision for dispute resolution mostlikely did not anticipate a conflict of such magnitude as the SouthChina Sea when it was drafted, and was modeled after similar in-ternational agreements in existence.105 Although instituting a de-fault method for one system is usually efficient, a more delicateapproach is necessary when the subject matter of the dispute mayrange anywhere from fishing rights near the coast to territorialclaims over a much greater body of water. The magnitude of mari-time disputes may encompass sovereign parties’ territorial, com-mercial, military, and political interests, which involves differentmotivations for one or a combination of such scenarios. Uniformdispute resolution mechanisms should not be applied to differenttypes of conflicts.

C. Med-Arb in Asia

A multinational agreement such as UNCLOS, which does notinherently have a means to enforce its authority, is held delicatelyin place by the parties’ voluntary deference to the Convention’sauthority, usually weighed by the level of convenience and utilitythat the system provides to the parties.106 While it is essential toissue rulings fairly and without regard to who the parties are, it isequally important to ensure that the process through which a deci-sion is made gives no grounds for the party to protest or reject thedecision. A refusal to accept the ruling undermines the authorityof the Convention for all the parties involved. The authority of theConvention is crucial. It not only provides for a platform for inter-

the parties to resolve their dispute by “bargaining in the shadow” of international lawand underscore the limited value of the international judicial system.

Id.105 Sarah Ashfaq, Something for Everyone: Why the United States Should Ratify the Law of

the Sea Treaty, 19 J. TRANSNAT’L L. & POL’Y 357, 373 (2010).106 See W. Laurence Craig, Some Trends and Developments in the Laws and Practice of Inter-

national Commercial Arbitration, 50 TEX. INT’L L.J. 699, 702 (2016); Gary Born, A New Genera-tion of International Adjudication, 61 DUKE L.J. 775, 779 (2012); Fabrizio Marrella, EmergingDilemmas in International Economic Arbitration: Unity and Diversity in International Arbitra-tion: The Case of Maritime Arbitration, 20 AM. U. INT’L L. REV. 1055, 1067 (2005); SuzanneKatzenstein, In the Shadow of Crisis: The Creation of International Courts in the Twentieth Cen-tury, 55 HARV. INT’L L.J. 151, 159 (2014); Alan O. Sykes, Public Versus Private Enforcement ofInternational Economic Law: Standing and Remedy, 34 J. LEGAL STUD. 631, 634 (2005); WilliamHeye, Note, Forum Selection for International Dispute Resolution in China—Chinese Courts vs.CIETAC, 27 HASTINGS INT’L & COMP. L. REV. 535, 553 (2004).



national dispute resolutions, but is in itself a set of principles, stan-dards, and guidelines to be followed.107

Prior to the arbitration panel’s decision, China was pushing forbilateral negotiations with the Philippines and expressed its opposi-tion to UNCLOS arbitration that was unilaterally brought againstthem by the Philippines.108 This is where doubts are cast over theappropriateness of compulsory arbitrations as the default disputeresolution method under UNCLOS. If China and other claimantshad engaged in mediations under the auspices of UNCLOS fromthe beginning, with third-party neutrals facilitating the discussions,the parties may have made some progress in finding commonground.109 There would have been a higher chance of the disputebeing resolved with both sides getting what they wanted in the me-diation, without the prospect of a certain claimant gaining an unfairadvantage behind closed doors, or the parties reaching yet anotherstalemate (the likely result of overlapping claims if there is no onewilling to make concessions.)110

The United States’ Alternative Dispute Resolution Act of1998, which authorized the use of alternate dispute resolutionprocesses in civil actions, set forth certain guidelines that demon-strated understanding of the requisite flexibility and differingweights of ADR methods.111 Courts were only allowed to requiremediation and neutral evaluation, but needed parties’ consent torecommend arbitration.112 Also, the courts implementing ADRprocedures had to examine the effectiveness of the existing proce-dures and adopt improvements,113 exempting, after consultationwith legal professionals,114 certain categories of cases for which theuse of ADR would not be appropriate. This approach is better atgoverning potential conflicts that may arise from a group of di-vided interests, due to the flexibility and element of anticipationfor different categories of disputes embodied in the rules.

As such, the presence of a skilled neutral figure in the processmakes a significant difference to the parties conducting a bilateralnegotiation, especially if the parties are at an impasse over a com-

107 Sohn, supra note 27, at 195.108 Welch, supra note 80.109 Id. 110 Mark S. Hamilton, Comment, Sailing in a Sea of Obscurity: The Growing Importance of

China’s Maritime Arbitration Commission, 3 ASIAN-PAC. L. & POL’Y J. 477 (2002).111 28 U.S.C.A. § 651 (1998).112 28 U.S.C.A. § 652(a) (1998).113 28 U.S.C.A. § 651(c) (1998).114 28 U.S.C.A. § 652(b) (1998).



plex dispute. It may even be that the parties are reluctant to makeconcessions in order to reach an agreement for fear of hurting na-tional morale or letting down an image of a formidable and stronggovernment. Mediators would facilitate the discussions to push thematter forward, and may be successful at having the parties agreeon some, if not all, of the points of dispute. Even a partial agree-ment sets up a starting point for whatever the post-mediation stage.

Unfortunately, the effectiveness of mediation is underesti-mated in the global community in comparison to adjudication orarbitration, and mediation is not as commonly offered as arbitra-tion as an option by international forums or mandated by interna-tional laws as a dispute resolution method.115 In reality, stateparties prefer mediation over adjudication, but are limited fromseeking the procedure due to the lack of institutional capacity forinternational mediation.116

Another issue is the lack of an authoritative body that setsstandards and/or qualifies mediators recognized under interna-tional law.117 It’s a catch-22 situation where a de-emphasis on me-diation continues to distract the growth of venues oradministrations for mediation. Meanwhile, the lack of venues oradministrations for it continues to support the notion that media-tion is secondary to adjudication or other methods of ADR.118

This type of combined process is utilized widely in easternAsia as a way to settle disputes, even allowing the same neutral toserve as both a mediator and an arbitrator through the combinedprocesses:

In Asian cultures, combining arbitration and mediation with thesame neutral is more common than in the West. China’s arbitra-tion law and institutions are especially known for encouragingthe combination, drawing on the practices in Chinese courts,which are in turn heavily influenced by China’s philosophicaland historical emphasis on resolving disputes by moral persua-sion rather than legalistically. China practices a particularlystrong integration of the two processes. While the practice insome other Asian countries is to suspend arbitration hearingsduring mediated settlement attempts, in China mediation mayoccur during the ongoing process of arbitration with no clear

115 Anna Spain, Integration Matters: Rethinking the Architecture of International Dispute Res-olution, 32 U. PA. J. INT’L L. 1, 19 (2010).

116 Jun Ge, Mediation, Arbitration and Litigation: Dispute Resolution in the People’s Republicof China, 15 PAC. BASIN L.J. 122 (1996).

117 Spain, supra note 115, at 20.118 Id.



distinction between an arbitration and mediation phase of theprocess.119

This is in no small part due to the moral persuasion element in theprocesses that is in accord with the traditional goals of preservingrelationships and finding common grounds, instead of looking toan impersonal judge and a legal system for a potentially harsh rul-ing that is not in consideration of the unique circumstances.120

There may be additional objections due to the “package deal”element of the med-arb process, which ties together two separateproceedings and potentially double the requisite resources inresolving the dispute. But it should be noted that if the first stepdoes not resolve the issue, the parties are likely to seek out othermethods and incur additional costs anyway. Also, med-arb is not acommitment to the entire process, but a conditional arrangementthat takes place in full if all the disputed matters are not resolvedwithin the mediation portion of the proceeding. The parties arefree to settle at any point during the entire med-arb process andomit the arbitration portion if unnecessary.121

Other objections may relate to the cumbersome shift that isnecessary in making med-arb a default ADR in the region. In fact,using mediation and other ADR methods is already a norm122 ledby some Asian countries through organizations such as ChinaInternational Economic and Trade Arbitration Commission(“CIETAC”)123 and Seoul International Dispute ResolutionCenter (“SIDRC”). China has actually codified its informal medi-ation system, the 1954 Provisional General Rules for the Organiza-tion of People’s Mediation Committees, despite annulling most ofits existing legal system soon after the onset of its new Communistregime.124 Even today, mediation committees are widely utilized inChinese towns and institutions, far surpassing the number of casesprocessed by its courts.125

If the parties are unhappy with a UNCLOS-based arbitration,they can go on to bilateral negotiation or mediation as they wish.But any delays or uncertainties as to what is next are costly and

119 Garrison, supra note 66, at 222; Deason, supra note 72, at 222–23.120 Garrison, supra note 66, at 222.121 Deason, supra note 72, at 222.122 Heye, supra note 106.123 Huang Yamming, Some Remarks About the 1994 Rules of CIETAC and “China’s New

International Arbitration Rules”, 11 J. INT’L ARB. 105 (1994).124 Ge, supra note 116, at 123.125 Ge, supra note 116, at 124.



frustrating, at least for some of the parties.126 Until the conflictingclaims are fully resolved, claimants with divergent interests are notfree to tap into the vast resources under the South China Sea with-out causing diplomatic strains, especially given that even certainfishing activities are monitored by the rival claimants.127

1. Concerns with Bilateral Negotiations

Ever since the tribunal’s decision, China has commenced bi-lateral negotiations to solve the matter in its own way.128 China isusing a method that is familiar to it and certainly diplomaticallyappropriate between sovereign nations.129 But China has alreadyengaged in bilateral negotiations over the years without much suc-cess.130 Due to its firm belief in the legitimacy of its claim, Chinahas shown itself to be stubborn negotiators when it came to suchdiscussions, as exemplified over the Paracel Islands talks with Viet-nam.131 While it is ironic that China, a modern champion of ADR,is struggling to make the most basic tactical concessions, these re-peated attempts highlight a need to take a step back and defuse thesituation or look to other methods.132 There is a great need for aneutral third party to act as a facilitator since the parties havereached a point where everyone is more inclined to be stubbornbecause no one is making concessions.133 In this situation, a media-tor employing a manipulative style would have worked best sincethe stubborn parties would need convincing and significant changeof positions.134 If UNCLOS had not mandated arbitration as theprimary ADR method, China and other parties would have went

126 Hamilton, supra note 110.127 Santos, supra note 92.128 Iron Out, supra note 91.129 Hamilton, supra note 110.130 Lin, supra note 45, at 600.131 Id. at 602:

The PRC is a party to the 2002 Declaration with the ASEAN, which provides for adispute resolution settlement mechanism of negotiations with individual states, aswell as other methods. However, in its conflicts in the South China Sea with Vietnamand the Philippines, though China has referenced the ASEAN provisions for bilat-eral negotiations with individual states, it has been reluctant in practice to negotiatewith the countries involved when the dispute concerns issues of sovereignty, as thepreviously-mentioned example of the Paracel Islands dispute illustrates.

Lin, supra note 45, at 602.132 Jerome A. Cohen, How Asia Can Defuse Island Disputes, SOUTH CHINA MORNING POST

(Oct. 5, 2012), http://www.scmp.com/comment/insight-opinion/article/1053936/how-asia-can-defuse-island-disputes.

133 Id. 134 BERCOVITCH, supra note 63.



along more willingly with a familiar and risk-averse system thatwas put in place by the Convention, despite the fact that Chinadoes not favor the use of mediation in international disputes.135

While it will be a satisfying ending for everyone involved if theparties managed to stamp out a settlement on their own to make atleast some claimants happy, the purpose of UNCLOS still needs tobe served. UNCLOS clearly ruled that: 1) China’s nine-dash linewas not a legitimate claim; and 2) China’s artificial land masseswere causing environmental problems. Those determinations weremade based on the Convention’s established rules that govern thesea, “a ‘constitution’ for the world’s oceans.”136 If China success-fully provides economic compensations in return for neighborswaiving their respective claims to the region,137 it will go back tothe original nine-dash line claim that was determined by China it-self outside of the Convention’s governance.138 If that turns out tobe the case, the tribunal’s determination, based on pertinent factsand the governing law, will be rendered meaningless.139 What thetribunal sought to emphasize based on the principles of UNCLOSon the point of environmental wrongs committed by China wouldbe dismissed.140 This next step, in which the parties settle on theirown terms outside the sphere of the Convention, could potentiallyundermine its authority and legitimacy more than the initialnonadherence to the tribunal’s ruling.

IV. PROPOSAL

UNCLOS mandates arbitration implemented by organizationssuch as ITLOS141 and PCA to resolve issues that the signatories

135 Lin, supra note 45, at 610.136 James Kraska, I.O. 2.0: Indian Ocean Security and the Law of the Sea, 43 GEO. J. INT’L L.

433, 445 (2012) (quoting Tommy T. B. Koh, President of the Third U.N. Conference on the Lawof the Sea, A Constitution for the Oceans (Dec. 6, 11, 1982), in 1 UNITED NATIONS CONVENTION

ON THE LAW OF THE SEA: A COMMENTARY 1982 11–12 (Myron H. Nordquist et al. eds., 1985)).137 Santos, supra note 92.138 Tarnogorski, supra note 40.139 Id. 140 Id. 141 Marrella, supra note 106, at 1055:

This court, based in Hamburg, Germany, has jurisdiction over disputes concerningthe interpretation and application of the Montego Bay Convention as well as otherinternational agreements relating to the law of the sea. The ITLOS hears cases, interalia, on issues concerning the nationality of ships; the freedom to navigate in theexclusive economic zone; the prompt release of ships and equipment detained due tosuspected violation of the Montego Bay Convention; the prevention of marine pollu-



bring before the Convention in a timely manner.142 The proposedchanges to the current ADR system will make the proceedingsmore desirable to the parties. There is an advantage reaped bydoing away with formal adjudications that generally takes a longertime, but skipping the mediation stage is detrimental in that itcurbs the parties’ willing participation in the proceedings.143 Sucha process is not an effective way to handle disputes in Asia, espe-cially where ADR is widely used to facilitate negotiations and dis-cussions among the parties, and some alterations are necessary forthe system to work.

A. Med-Arb as the Recommended ADR Method

Med-arb should be generally applied to maritime disputes inAsia to overcome the lack of constructive enforceability of arbitraldecisions under UNCLOS. Due to a strong sentiment against anunfamiliar panel deciding on behalf of the parties, arbitrationshould be, in most cases, a last resort proceeding following an am-ple opportunity for parties to communicate their goals and negoti-ate. There should be a categorization of disputes and appropriateADR methods or adjudication recommended for each type of dis-pute.144 The entire process also guarantees a smoother transitionfrom mediation to arbitration, which the parties would be moreopen to if they had already tried mediation together and failed tocome to agreement or failed to resolve all the issues.145 Instead ofissuing an arbitration ruling, which may reward one winner andalienate the other party,146 allowing the parties an opportunity tocome to terms on their own with a neutral facilitator can be much

tion resulting from the disposal of waste; and, more generally, on the conservationand management of marine resources. It has exclusive jurisdiction, through its Sea-bed Disputes Chamber, over disputes relating to activities in the international seabedarea.

Id. 142 UNCLOS, supra note 18.143 Garrison, supra note 66.144 28 U.S.C.A. § 651 (1998) (similar to the United States Alternative Dispute Resolution Act

of 1998).145 Deason, supra note 70, at 224 (“All of the combinations of mediation and arbitration offer

an advantage over either process alone in that they allow the parties to find their own solutions(in mediation), while ensuring that the dispute will be resolved even if the parties fail to reach anagreement (through arbitration).”).

146 Ramos-Mrosovsky, supra note 79, at 937 (“All lawsuits involve a degree of uncertainty,but international sovereignty claims are especially chancy.”).



more effective. By replacing the default dispute resolutionmethod, the Convention would ease the prospect of going into theprocess, open up the parties to facilitated discussions of their goalsand concessions, and in case there is no conclusion, guide themuntil the end under UNCLOS guidelines.147

Even if the mediation portion of the proceeding had not en-ded with an agreement, China would have been more likely to fol-low through onto the next stage of arbitration because they wouldhave experienced that negotiating, even with a mediator, could notresolve the situation;148 even if expediency in reaching the conclu-sion is not their first priority, it is certainly desired at some pointand becomes a greater priority as the parties run out of options andcome closer to an impasse. The combined process of mediation-arbitration, or “med-arb”, would have allowed the parties to movethrough the process with more cooperation from both parties andwith fewer delays.149 Even the Philippines, which has good reasonsto be on full board with the result, may or may not be able to usetheir win as leverage as the talks continue.150 If one only looks atthe outcome, the parties stand to gain from the future negotiationsoutside the bounds of UNCLOS after experiencing difficulties anddelays by going through the PCA arbitration, while the Conventionhas drawn attention to its lack of enforcement measure and inade-quate institutional framework.151

China never consented to resolving its conflict with otherclaimants through the arbitration tribunal152 and cited many obsta-cles in submitting to the tribunal in the first place.153 A high-pro-file or controversial matter warrants as much cooperation andcompliance as possible.154 Mediation, due to its non-binding na-ture, makes the option more attractive and risk-averse, which theparties are more likely to be open to.155 This encourages a consen-sual and bilateral atmosphere, which is largely what was lacking in

147 Deason, supra note 70, at 219.148 Lin, supra note 45, at 581.149 Garrison, supra note 66, at 218.150 Venus Wu, Philippines seeks formal talks with China amid South China Sea tension: Ra-

mos, REUTERS (Aug. 11, 2016), http://www.reuters.com/article/us-southchinasea-ruling-philippines-idUSKCN10N0CS.

151 Ramos-Mrosovsky, supra note 79, at 937.152 See Lin, supra note 45, at 593; N. Elias Blood-Patterson, Note, Smoke on the Water: The

Role of International Agreements in the Philippine-Chinese Dispute over the South China Sea, 46N.Y.U. J. INT’L L. & POL. 1207, 1238 (2014); Cohen, supra note 132.

153 Roca, supra note 82.154 Garrison, supra note 66.155 Id.



the South China Sea dispute resolution process.156 When the par-ties are two sovereign nations, they must both be willing to sitdown and go through the process together, and such a mindset andcommitment is likely to be carried into arbitration in a med-arbprocess.157 A high-stakes conflict calls for greater security and pre-dictability in the proceedings due to the risk-averse attitudes of theparties.158

B. Consent and Consequence

If the Convention is to exercise its authority effectively in thefuture, it should mandate that the parties submit to the med-arbprocess from the very beginning and impose consequences for notadhering to the tribunal’s final decision.159 Parties should not beallowed to selectively ratify the Convention while declining to besubject to its authority.160 An international forum that can decideon a matter that the parties cannot objectively handle on their ownis something that should be utilized as much as possible,161 espe-cially for smaller governments with less leverage to negotiate witha global power, and with regard to conflicts with complicated mul-tiple claims to a single entity and high stakes for everyone due tothe anticipated resources.162 Parties should be required to affirmtheir participation in the med-arb proceeding or consequently facewarnings or punitive fines imposed against them for not complyingwith the process. The tribunals should refrain from issuing defaultjudgments against a silent party as the party is even less likely tocomply without having had an opportunity to be heard. Affirmingthe parties’ initial participation and issuing warnings or fines fromthe Convention would increase responsiveness and engagementfrom the parties.163

156 Id. at 219.157 Deason, supra note 70, at 222.158 Lin, supra note 45.159 Hamilton, supra note 110.160 Lin, supra note 45.161 Id. 162 Ramos-Mrosovsky, supra note 79, at 903.163 Ramos-Mrosovsky, supra note 79 (discussing the malleability of the available legal princi-

ples under UNCLOS, under which parties invoke international law without signs of submittingto actual adjudication on the merits of their claims).



C. Separate Mediators and Arbitrators

Med-arb proceedings should employ separate individuals toact as a mediator and arbitrator as the mediation facilitator chang-ing hats to become the arbitrator in the next proceeding can resultin confusion or unfairness to the parties.164 Mediators and arbitra-tors play distinct roles as facilitators and arbiters, so their approachto the resolution and their interaction with the parties is bound tobe different:165 “The appropriate skills are very different; a judi-cious decision-maker who runs an efficient adversary evidentiaryhearing may not be effective in working directly and more infor-mally with the parties to facilitate their own agreement, and viceversa.”166 Mediators encourage discussion to reveal relevant infor-mation, develop options, and facilitate communications, whilemeeting with the parties or meeting with them individually.167 Ifthe parties are not making any concessions and unable to makeprogress on their own, mediators would play a more active role tofacilitate the process. The depth of a mediator’s role in the rela-tionship would depend upon the dynamics between the parties,their level of engagement, and how far they are from reaching theircommon ground.168 Arbitrators hear the presented case (whichwould be obsolete if they were also the mediator in the previousproceeding) and issue decisions based on the factual findingspresented, not information that the parties reveal to the mediatorduring the mediation portion. Due to such differences between theroles and the relationship each role bears to the discussion, it isadvisable to avoid combining those roles in one person or onebody, a practice that is prevalent in dispute resolutions practiced bycountries in Asia.169

V. CONCLUSION

UNCLOS is a useful system that has already served to resolvemany disputes under its implementation. The weaknesses thatwere discussed in this Note are aimed at recommending provisions

164 Spain, supra note 115.165 Id. 166 Deason, supra note 70.167 Spain, supra note 115.168 BERCOVITCH, supra note 63.169 Heye, supra note 106.



to be added to the existing principles that are instituted, not to ar-gue the obsoleteness of the Convention. A body of law is necessa-rily flexible to account for outliers and special unforeseencircumstances under its governance. Just like the United States hasratified twenty-seven amendments to its Constitution, UNCLOSshould amend or elaborate its current body of law to dissuade thereluctance of its signatories with regard to its mandated disputeresolution mechanism. There are other issues that was not the cen-tral focus of this Note, such as the low number of internationalmediation bodies, loose guidelines on territorial sovereignty, andheightened level of tension between parties due to recent historythat proves challenging to the progression of dispute resolution.Still, making the proposed changes can help to achieve the purposeof the Convention despite those challenges. The proposed changeswill make adjudication under UNCLOS more desirable to the par-ties, bringing them under UNCLOS governance with willingnessand rendering them more compliant. The med-arb process natu-rally integrates the desires of the parties with the principles of UN-CLOS and will be a step towards substituting any loose ends in thebody of law by the agreement of the parties.

Documents

LESSONS FROM THE SOUTH CHINA SEA RULING: MED-ARB … · UNCLOS III is an international agreement which established standards and legal methods for securing navigation rights and pro-